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==Law and public policy==
==Law and public policy==
Many jurisdictions have developed their discrimination or equality legislation using a social model of disability and consequently either do not define disability per se, or define it widely. Typically, the initial focus of a tribunal or court dealing with a complaint of disability discrimination in these jurisdictions will be to ascertain whether there is a prima facie case to answer, rather than whether the complainant is entitled to make that complaint.
In the [[United Kingdom]], the [[Disability Discrimination Act 1995|Disability Discrimination Act]] defines disability using the medical model - disabled people are defined as people with certain conditions, or certain limitations on their ability to carry out "normal day-to-day activities." But the requirement of employers and service providers to make "reasonable adjustments" to their policies or practices, or physical aspects of their premises, follows the social model.<ref>{{cite web|url=http://www.direct.gov.uk/en/DisabledPeople/RightsAndObligations/DisabilityRights/DG_4001068 |title=Definition of disability under the Equality Act 2010 - GOV.UK |publisher=Direct.gov.uk |date=2012-10-22 |accessdate=2012-11-10}}</ref> By making adjustments, employers and service providers are removing the barriers that disable - according to the social model, they are effectively removing the person's disability. In 2006, amendments to the act called for local authorities and others to actively promote disability equality. This enforcement came in the shape of the Disability Equality Duty in December 2006.<ref>http://www.dotheduty.org/ {{dead link|date=November 2012}}</ref> In 2010, The Disability Discrimination Act (1995) was amalgamated into the [[Equality Act 2010]] along with other pertinent discrimination legislation. It extends the law on discrimination to indirect discrimination. For example if a carer of a person with a disability is discriminated against, this is now also unlawful.<ref>{{cite web|url=http://www.equalities.gov.uk/equality_act_2010.aspx |title=Home Office |publisher=Equalities |date= |accessdate=2012-11-10}}</ref> From October 2010 when it came into effect it is now unlawful for employers to ask questions about illness or disability at interview for a job or for a referee to comment on such in a reference, except where there is a need to make reasonable adjustments for an interview to proceed. Following an offer of a job, an employer can then lawfully ask such questions.<ref>{{cite web|url=http://www.thebottomlineonline.co.uk/pages/fullarticle.asp?id=222 |title=Previous Issues of The Bottom Line Online |publisher=Thebottomlineonline.co.uk |date= |accessdate=2012-11-10}}</ref>

In this respect, the proving of entitlement to protection required by legislation developed using a medical model can be seen as an additional hurdle and disadvantage which people pursuing complaints of say, gender or religious discrimination do not usually face.

In the [[United Kingdom]], the [[Disability Discrimination Act 1995|Disability Discrimination Act]] defines disability using the medical model - disabled people are defined as people with certain conditions, or certain limitations on their ability to carry out "normal day-to-day activities."

But the requirement of employers and service providers to make "reasonable adjustments" to their policies or practices, or physical aspects of their premises, follows the social model.<ref>{{cite web|url=http://www.direct.gov.uk/en/DisabledPeople/RightsAndObligations/DisabilityRights/DG_4001068 |title=Definition of disability under the Equality Act 2010 - GOV.UK |publisher=Direct.gov.uk |date=2012-10-22 |accessdate=2012-11-10}}</ref> By making adjustments, employers and service providers are removing the barriers that disable - according to the social model, they are effectively removing the person's disability. In 2006, amendments to the act called for local authorities and others to actively promote disability equality. This enforcement came in the shape of the Disability Equality Duty in December 2006.<ref>http://www.dotheduty.org/ {{dead link|date=November 2012}}</ref> In 2010, The Disability Discrimination Act (1995) was amalgamated into the [[Equality Act 2010]] along with other pertinent discrimination legislation. It extends the law on discrimination to indirect discrimination. Indirect disability discrimination occurs when a provision, criterion or practice is applied generally, but which disadvantages a person with a physical or mental impairment to a greater extent than a person without that impairment. The Equality Act also prohibits direct discrimination against, and harassment of, an associate (including carers) of a disabled person. In a landmark decision in 2009 (''Coleman v Attridge Law''), the European Court of Justice held that whilst employees are protected from "associative discrimination" this protection did not extend as far as a duty on employers to make reasonable adjustments to mitigate the effects of indirect discrimination experienced by associates. From October 2010 when it came into effect it is now unlawful for employers to ask questions about illness or disability at interview (unless there is a genuine occupational requirement to justify such questions) for a job or for a referee to comment on such in a reference, except where there is a need to make reasonable adjustments for an interview to proceed. Following an offer of a job, an employer can then lawfully ask such questions.<ref>{{cite web|url=http://www.thebottomlineonline.co.uk/pages/fullarticle.asp?id=222 |title=Previous Issues of The Bottom Line Online |publisher=Thebottomlineonline.co.uk |date= |accessdate=2012-11-10}}</ref>


In the [[United States]], the [[Americans with Disabilities Act of 1990]] (ADA), revision of 2008 effective in January 2009, is a wide-ranging [[civil rights]] law that prohibits discrimination based on disability.<ref>[http://www.ada.gov/pubs/adastatute08.pdf AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED]</ref> It affords similar protections against discrimination to Americans with disabilities as the [[Civil Rights Act of 1964]], which made discrimination based on [[Race (classification of human beings)|race]], [[religion]], [[sex]], national origin, and other characteristics illegal. Certain specific conditions are excluded, such as [[alcoholism]] and [[transsexualism]].
In the [[United States]], the [[Americans with Disabilities Act of 1990]] (ADA), revision of 2008 effective in January 2009, is a wide-ranging [[civil rights]] law that prohibits discrimination based on disability.<ref>[http://www.ada.gov/pubs/adastatute08.pdf AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED]</ref> It affords similar protections against discrimination to Americans with disabilities as the [[Civil Rights Act of 1964]], which made discrimination based on [[Race (classification of human beings)|race]], [[religion]], [[sex]], national origin, and other characteristics illegal. Certain specific conditions are excluded, such as [[alcoholism]] and [[transsexualism]].

Revision as of 11:39, 6 October 2015

The social model of disability is a reaction to the dominant medical model of disability which in itself is a functional analysis of the body as machine to be fixed in order to conform with normative values.[1] The social model of disability identifies systemic barriers, negative attitudes and exclusion by society (purposely or inadvertently) that mean society is the main contributory factor in disabling people. While physical, sensory, intellectual, or psychological variations may cause individual functional limitation or impairments, these do not have to lead to disability unless society fails to take account of and include people regardless of their individual differences. The origins of the approach can be traced to the 1960s; the specific term emerged from the United Kingdom in the 1980s.

History

In 1975, the UK organization Union of the Physically Impaired Against Segregation (UPIAS) claimed: "In our view it is society which disables physically impaired people. Disability is something imposed on top of our impairments by the way we are unnecessarily isolated and excluded from full participation in society."[2][3]

In 1983, the disabled academic Mike Oliver coined the phrase "social model of disability" in reference to these ideological developments.[4] Oliver focused on the idea of an individual model (of which the medical was a part) versus a social model, derived from the distinction originally made between impairment and disability by the UPIAS.[5]

The "social model" was extended and developed by academics and activists in Australia, the UK, US and other countries, and extended to include all disabled people, including those who have learning difficulties / learning disabilities / or who are mentally handicapped, or people with emotional, mental health or behavioural problems.[6][7]

Oliver did not intend the "social model of disability" to be an all encompassing theory of disability, rather a starting point in reframing how society views disability.[citation needed]

Components and usage

A fundamental aspect of the social model concerns equality. The struggle for equality is often compared to the struggles of other socially marginalized groups. Equal rights are said to give empowerment and the "ability" to make decisions and the opportunity to live life to the fullest. A related phrase often used by disability rights campaigners, as with other social activism, is "Nothing About Us Without Us."[8]

The social model of disability focuses on changes required in society. These might be in terms of:

  • Attitudes, for example a more positive attitude toward certain mental traits or behaviors, or not underestimating the potential quality of life of those with impairments,
  • Social support, for example help dealing with barriers; resources, aids or positive discrimination to overcome them, for example providing a buddy to explain work culture for an employee with autism,
  • Information, for example using suitable formats (e.g. braille) or levels (e.g. simplicity of language) or coverage (e.g. explaining issues others may take for granted),
  • Physical structures, for example buildings with sloped access and elevators, or
  • Flexible work hours for people with circadian rhythm sleep disorders or, for example, for people who experience anxiety/panic attacks in rush hour traffic.[9]

The social model of disability implies that attempts to change, "fix" or "cure" individuals, especially when used against the wishes of the patient, can be discriminatory and prejudiced. This attitude, which may be seen as stemming from a medical model and a subjective value system, can harm the self-esteem and social inclusion of those constantly subjected to it (e.g. being told they are not as good or valuable, in an overall and core sense, as others). Some communities have actively resisted "treatments", while, for example, defending a unique culture or set of abilities. In the deaf community, sign language is valued even if most people do not know it and some parents argue against cochlear implants for deaf infants who cannot consent to them.[10] People diagnosed as being on the autism spectrum may argue against efforts to change them to be more like others. They argue instead for acceptance of neurodiversity and accommodation to different needs and goals.[11] Some people diagnosed with a mental disorder argue that they are just different and don't necessarily conform. The biopsychosocial model of disease/disability is a holistic attempt by practitioners to address this.[12]

The social model implies that practices such as eugenics are founded on social values and a prejudiced understanding of the potential and value of those labeled disabled. "Over 200,000 disabled people were the first victims of the Holocaust."[13]

A 1986 article stated: "It is important that we do not allow ourselves to be dismissed as if we all come under this one great metaphysical category 'the disabled'. The effect of this is a depersonalization, a sweeping dismissal of our individuality, and a denial of our right to be seen as people with our own uniqueness, rather than as the anonymous constituents of a category or group. These words that lump us all together -'the disabled', 'spina bifida', 'tetraplegic', 'muscular dystrophy’, - are nothing more than terminological rubbish bins into which all the important things about us as people get thrown away."[14]

The social model of disability is based on a distinction between the terms "impairment" and "disability." Impairment is used to refer to the actual attributes (or lack of attributes), the abnormality, of a person, whether in terms of limbs, organs or mechanisms, including psychological. Disability is used to refer to the restrictions caused by society when it does not give equivalent attention and accommodation to the needs of individuals with impairments.[15]

The social model also relates to economics. It proposes that people can be disabled by a lack of resources to meet their needs. It addresses issues such as the under-estimation of the potential of people to contribute to society and add economic value to society, if given equal rights and equally suitable facilities and opportunities as others. In Autumn 2001, the UK Office for National Statistics identified that approximately one fifth of the working age population were disabled - 7.1 million disabled people as opposed to 29.8 million able people - and in this analysis also provided insight into some of the reasons why disabled people were unwilling to enter the labour market, such as that the reduction in disability benefits in entering the labour market would not make it worthwhile to enter into employment. A three pronged approach was suggested: "incentives to work via the tax and benefit system, for example through the Disabled Person’s Tax Credit; helping people back into work, for example via the New Deal for Disabled People; and tackling discrimination in the workplace via anti-discrimination policy. Underpinning this are the Disability Discrimination Act (DDA) 1995 and the Disability Rights Commission."[16]

Law and public policy

Many jurisdictions have developed their discrimination or equality legislation using a social model of disability and consequently either do not define disability per se, or define it widely. Typically, the initial focus of a tribunal or court dealing with a complaint of disability discrimination in these jurisdictions will be to ascertain whether there is a prima facie case to answer, rather than whether the complainant is entitled to make that complaint.

In this respect, the proving of entitlement to protection required by legislation developed using a medical model can be seen as an additional hurdle and disadvantage which people pursuing complaints of say, gender or religious discrimination do not usually face.

In the United Kingdom, the Disability Discrimination Act defines disability using the medical model - disabled people are defined as people with certain conditions, or certain limitations on their ability to carry out "normal day-to-day activities."

But the requirement of employers and service providers to make "reasonable adjustments" to their policies or practices, or physical aspects of their premises, follows the social model.[17] By making adjustments, employers and service providers are removing the barriers that disable - according to the social model, they are effectively removing the person's disability. In 2006, amendments to the act called for local authorities and others to actively promote disability equality. This enforcement came in the shape of the Disability Equality Duty in December 2006.[18] In 2010, The Disability Discrimination Act (1995) was amalgamated into the Equality Act 2010 along with other pertinent discrimination legislation. It extends the law on discrimination to indirect discrimination. Indirect disability discrimination occurs when a provision, criterion or practice is applied generally, but which disadvantages a person with a physical or mental impairment to a greater extent than a person without that impairment. The Equality Act also prohibits direct discrimination against, and harassment of, an associate (including carers) of a disabled person. In a landmark decision in 2009 (Coleman v Attridge Law), the European Court of Justice held that whilst employees are protected from "associative discrimination" this protection did not extend as far as a duty on employers to make reasonable adjustments to mitigate the effects of indirect discrimination experienced by associates. From October 2010 when it came into effect it is now unlawful for employers to ask questions about illness or disability at interview (unless there is a genuine occupational requirement to justify such questions) for a job or for a referee to comment on such in a reference, except where there is a need to make reasonable adjustments for an interview to proceed. Following an offer of a job, an employer can then lawfully ask such questions.[19]

In the United States, the Americans with Disabilities Act of 1990 (ADA), revision of 2008 effective in January 2009, is a wide-ranging civil rights law that prohibits discrimination based on disability.[20] It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal. Certain specific conditions are excluded, such as alcoholism and transsexualism.

In Australia, the federal Disability Discrimination Act 1992 contains a broad medical definition that incorporates all forms of medically diagnosable disease or dysfunction, real or imputed, temporary or permanent, and past or present. The Australian Act is loosely based on the US ADA.[21][22]

In 2007, the European Court of Justice in the Chacon Navas v Eurest Colectividades SA court case, defined disability narrowly according to a medical definition that excluded temporary illness, when considering the Directive establishing a general framework for equal treatment in employment and occupation (Council Directive 2000/78/EC). The directive did not provide for any definition of disability, despite discourse in policy documents previously in the EU about endorsing the social model of disability. This allowed the Court of Justice to take a narrow medical definition.[citation needed]

See also

References

  1. ^ Paley, John (1 October 2002). "The Cartesian melodrama in nursing". Nursing Philosophy. 3 (3): 189–192. doi:10.1046/j.1466-769X.2002.00113.x.
  2. ^ "THE UNION OF THE PHYSICALLY IMPAIRED AGAINST SEGREGATION and THE DISABILITY ALLIANCE discuss Fundamental Principles of Disability" (PDF). UPIAS. Retrieved 23 October 2010.
  3. ^ "Fundamental Principles of Disability - Comments on the discussion held between the Union and the Disability Alliance on 22nd November, 1975" (PDF). UPIAS. Retrieved 23 October 2010.
  4. ^ Michael Oliver; Bob Sapey (27 April 2006). Social work with disabled people. Palgrave Macmillan. ISBN 978-1-4039-1838-3. Retrieved 23 October 2010.
  5. ^ MIKE OLIVER (23 July 1990). "THE INDIVIDUAL AND SOCIAL MODELS OF DISABILITY" (PDF). leeds.ac.uk. Retrieved 10 November 2012. {{cite journal}}: Cite journal requires |journal= (help)
  6. ^ http://www.bfi.org.uk/education/teaching/disability/thinking/medical.html [dead link]
  7. ^ Goodley, Dan (1 March 2001). "'Learning Difficulties', the Social Model of Disability and Impairment: Challenging epistemologies". Disability & Society. 16 (2): 207–231. doi:10.1080/09687590120035816.
  8. ^ James I. Charlton (2000). Nothing about us without us: disability oppression and empowerment. University of California Press. p. 3. ISBN 978-0-520-22481-0. Retrieved 23 October 2010.
  9. ^ "EHRC - Examples of reasonable adjustments in the workplace". Equalityhumanrights.com. 1 October 2010. Retrieved 10 November 2012.
  10. ^ NASEO. "Sound from Silence - Sidebar - Cochlear Implan". Beyonddiscovery.org. Retrieved 10 November 2012.
  11. ^ Seidel, Kathleen (20 August 2004). "the autistic distinction". neurodiversity.com. Retrieved 10 November 2012.
  12. ^ Engel, G. (8 April 1977). "The need for a new medical model: a challenge for biomedicine". Science. 196 (4286): 129–136. Bibcode:1977Sci...196..129E. doi:10.1126/science.847460. PMID 847460.
  13. ^ http://www.eastrenfrewshire.gov.uk/holocaust/holocaust_remembrance_2004_-_other_victims/holocaust_remembrance_2004_-_disabled___the_holocaust.htm [dead link]
  14. ^ Brisenden, Simon (1 January 1986). "Independent Living and the Medical Model of Disability". Disability, Handicap & Society. 1 (2): 173–178. doi:10.1080/02674648666780171.
  15. ^ Pam Thomas; Lorraine Gradwell; Natalie Markham. "Defining Impairment within the Social Model of Disability" (PDF). leeds.ac.uk. Retrieved 10 November 2012.
  16. ^ http://www.statistics.gov.uk/articles/labour_market_trends/People_with_disabilities_aug2002.pdf [dead link]
  17. ^ "Definition of disability under the Equality Act 2010 - GOV.UK". Direct.gov.uk. 22 October 2012. Retrieved 10 November 2012.
  18. ^ http://www.dotheduty.org/ [dead link]
  19. ^ "Previous Issues of The Bottom Line Online". Thebottomlineonline.co.uk. Retrieved 10 November 2012.
  20. ^ AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED
  21. ^ Paul Harpur, Ben French and Richard Bales, 'Australia’s Fair Work Act and the Transformation of Workplace Disability Discrimination Law' (2012) 30 Wisconsin International Law Journal, 190-248;
  22. ^ Paul Harpur, 'From universal exclusion to universal equality: Regulating Ableism in a Digital Age' (2013) 40 Northern Kentucky Law Review 3, 529-565.